Opinion 06-98

September 7, 2006

Digest:         (1) A town justice is not precluded from serving in that office because his/her law partners are also part-time assistant district attorneys. (2) A town justice may serve as both town justice and assistant county attorney, provided that his or her duties as assistant county attorney do not involve quasi-prosecutorial duties, such as handling juvenile delinquency or person-in-need-of supervision cases.

Rules:          Fam. Ct. Act § 301.2(1); Art. 7; Judiciary Law § 471; 22 NYCRR 100.6(B)(1)-(4); Opinions 03-97; 01-20 (Vol. XIX); 00-04 (Vol. XVIII); 98-30 (Vol. XVI); 96-72 (Vol. XIV); 93-33 (Vol. XI); 90-188 (Vol. VI); 88-128 (Vol. III); 88-46 (Vol. II).

Opinion:

         A prospective candidate for the office of town justice asks whether it is ethically permissible to serve as a town justice (1) when three of the prospective candidate’s law partners are also part-time assistant district attorneys in the same county in which the candidate would preside; and (2) the prospective candidate is also a part-time county attorney, whose responsibilities include prosecuting cases against alleged juvenile delinquents and persons-in-need-of-supervision. As assistant district attorneys, the prospective candidate’s partners are responsible for prosecuting misdemeanor criminal cases in town and village courts throughout the county, though none is assigned to, or otherwise appears in, the court in which the prospective candidate would preside.

         While a part-time judge is permitted to practice law (22 NYCRR 100.6(B)(1)), he/she may not practice law in the court on which he/she serves, or in any other court in the county in which his/her court is located before a judge who is permitted to practice law. 22 NYCRR 100.6(B)(2). In addition, a part-time judge may not permit his or her partners or associates to practice law in the court in which he or she is a judge. 22 NYCRR 100.6(B)(3). Subject to these limitations, the inquirer could serve as a part-time town justice and continue to practice law. A judge’s law partner, however, is prohibited from practicing before the judge, and any law partner or person connected in law business with a judge is prohibited from practicing law in the judge’s court. Judiciary Law § 471. The inquirer’s law partners and associates, therefore, could not practice in any capacity in the court in which the inquirer would preside. In addition, the inquirer would have to refrain from engaging in any conversations, or otherwise communicating, with his or her partners about any cases that have been, that are, or that likely will be handled by the District Attorney’s office. Moreover, a judge should not preside if any of his or her partners had any involvement in a case before the judge.

         As for serving simultaneously as an assistant county attorney and a town justice, section 100.6(B)(4) of the Rules Governing Judicial Conduct provides that “[a] part-time judge . . . may accept private employment or public employment in a Federal, State or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties.”

         This Committee has previously advised that, as a general rule, a town justice may serve as a county attorney or an assistant county attorney. Opinions 88-128 (Vol. III); 88-46 (Vol. II). This Committee also has advised, however, that a part-time town or village justice cannot simultaneously serve in a position involving prosecutorial responsibilities. For instance, a part-time town justice may not also serve as an assistant district attorney, because of the special relationship between district attorneys and law enforcement personnel. Opinions 01-20 (Vol. XIX); 98-30 (Vol. XVI); 96-72 (Vol. XIV); 93-33 (Vol. XI); 90-188 (Vol. VI). An acting village justice may not also serve as a town building inspector who issues appearance tickets returnable in the town court. Opinion 00-04 (Vol. XVIII). Similarly, a town justice may not accept employment as a town code enforcement officer. Opinion 03-97.

         Thus, while there is no per se incompatibility between the positions of assistant county attorney and town justice, there is a conflict if the responsibilities of the assistant county attorney position involve quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases. By definition, juvenile delinquents are persons who have “committed an act that would constitute a crime if committed by an adult” (Fam. Ct. Act § 301.2[1]), and persons-in-need-of-supervision proceedings may involve matters such as being taken into custody, detention, placement and related questions that are akin to possible issues in criminal proceedings. Fam. Ct. Act Art. 7. It is our view that a judge should not be in the position of prosecuting such cases. Accordingly, the inquirer (if elected) should not serve as an assistant county attorney if such service would require him or her to be involved in such cases.